Evans v. List
| Decision Date | 19 October 1936 |
| Docket Number | 4-4384 |
| Citation | 97 S.W.2d 73,193 Ark. 13 |
| Parties | EVANS v. LIST |
| Court | Arkansas Supreme Court |
Appeal from Jefferson Circuit Court; T. G. Parham, Judge; reversed.
Judgment reversed.
E. W Brockman, for appellant.
Danaher & Danaher, for appellees.
Appellant brought this suit in the circuit court of Jefferson county against George W. List, trading as List Laundry, on November 17, 1932, to recover on open account $ 589.60 for installing a set of gas burners and controls in the laundry and for the value of a valve tank, pipe fittings and a steam trap, which were included in the total sued for.
It was ascertained, after the institution of the suit, that the items sued for were billed and delivered to George W. List trading as List Laundry, for the use and benefit of American Excelsior Laundry Company, which latter company operated its laundry under the trade name of George W. List, trading as List Laundry. Thereupon, by amendment to the complaint filed March 15, 1935, the American Excelsior Laundry Company was made party defendant. The original suit brought against George W. List, trading as List Laundry, was, in effect, brought against American Excelsior Laundry Company, as it was conducting its business under the trade name of List Laundry. According to the undisputed evidence, they were one and the same party. The effect of the amendment was to substitute the real corporate name of the only party in interest. The amendment was not a suit against a new and different party or the addition of a new and different party, so the suit must be treated as originally brought against American Excelsior Laundry Company on the date same was filed against George W. List, trading as List Laundry. The original suit was brought within three years after the installation, and its plea that the cause of action was barred when the suit was brought has no foundation in fact, and it is without merit. Foster-Holcomb Ins. Co. v. Little Rock Publishing Company, 151 Ark. 449, 236 S.W. 597. In the instant case, when mere form is disregarded, no new party was brought in by amendment. The effect of the amendment was to correct the name of the party originally sued.
The only other defense interposed to the action is that the minds of the parties never met upon a contract for furnishing the burners and controls. According to the undisputed proof, the burners were installed under a guaranty that they would make plenty of steam to operate the plant just like it was going at a saving of ten or twenty per cent. for gas. The first unit of burners...
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